Date: 20071106
Docket: IMM-4085-07
Citation: 2007
FC 1153
Toronto, Ontario, November 6, 2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
SUSEENTHIRAN THARMARATNAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
application by the applicant to stay his removal to Sri Lanka scheduled for this afternoon must be
dismissed for the following reasons.
[2]
The
underlying judicial review application to which this stay application is
grafted is the October 22, 2007 decision by a Pre-Removal Risk Assessment
(PRRA) officer who decided the applicant’s second PRRA application filed June
6, 2006 must be rejected. The PRRA Officer found
that the applicant would not be subject to risk of
persecution, danger of torture, risk to life or risk of cruel and unusual
punishment if returned to Sri Lanka.
[3]
The
following facts are relevant. The applicant is a 30 year old Tamil born in the
North of Sri Lanka. He came to Canada
in 1993 at the age of 15 as a permanent resident sponsored by his father who
had been recognized as a refugee. At the time of sponsorship, his mother, the
applicant and his siblings had been residing in India since 1990 because their house and
business had been commandeered by the LTEE during the civil war.
[4]
In 1999,
under the Old Immigration Act, a removal order was issued against him on the
grounds he was inadmissible for serious criminality. He appealed the removal
order to the Immigration Appeal Board (the IAD) where it failed. On November
5, 2004, it decided the removal order was valid because the applicant had not
challenged its validity, but more importantly, the IAD refused to exercise its
discretionary jurisdiction to stay his removal because of his criminal record:
eight convictions, four of which involved violence or weapons. It found he was
a gang member when he committed those crimes being associated with the Gilder Boys
from 1997 to 2001 and currently (from 2001 to 2004) associated with a splinter
group.
[5]
He
challenged the IAD decision in the Federal Court. Leave was denied on
February 23, 2005.
[6]
He made
his first PRRA application on January 4, 2005 with submissions filed by his
counsel on January 15, 2005 expressing a risk of conscription and extortion by
the LTEE in the LTEE controlled North if returned there and a risk of
persecution by the Sri Lankan Police/Army because he is a young Tamil male who
will be persecuted as a member or supporter of the LTEE.
[7]
The PRRA
officer rejected his PRRA application on April 19, 2006. The PRRA officer
found there was a serious possibility of persecution of being forceably conscripted
by the LTEE if returned to LTEE controlled territory in the North.
[8]
However,
the PRRA officer found the application had a viable IFA in Colombo. The PRRA officer found the
evidence did not indicate that members of Canadian gangs affiliated with the
LTEE are being persecuted by either the LTEE in Sri Lanka or by the Sri Lankan government. For
this view, the PRRA officer relied upon the testimony of a Canadian Foreign Service
officer at the High Commission in Colombo
who indicated that returnees to Colombo, failed asylum seekers or members known
to be affiliated with gangs were not detained at the airport in Colombo on arrival. The PRRA officer
said this opinion was corroborated by other objective and reliable sources
including the U.K. Home Office Science and Research Group.
[9]
The
applicant sought leave to the Federal Court from this decision and sought a
stay of the execution of his removal. On June 19, 2006, Justice Beaudry
dismissed the stay application being of the view “the applicant failed to
provide any meaningful argument that the PRRA officer made
any error. There is no serious issue to be tried.” He also
found the balance of convenience supported the Minister because “the applicant
has a serious criminal record”.
[10]
The
applicant filed his second PRRA application on June 6, 2006. His counsel
submitted new documentary evidence focussed on events in the April, May and
June of 2006. The PRRA officer rejected this 2nd PRRA on October 22nd,
2007. His view was that the applicant had put forward the same risks as he had
in his first PRRA application. He quoted with approval, the first PRRA
officer’s determination that members known to be affiliated with gangs not being
detained at the Colombo
Airport or arrested or experiencing
negative repercussions. He confirmed the first PRRA officer’s review of a
viable IFA in Colombo.
[11]
He
accepted the applicant’s documentary evidence as new evidence. He conducted an
independent review of current country conditions and in particularly took into
account the current USDOS of March 2007, the Home Office Report of September 4,
2007 and the South Asian Terrorism Portal-Sri Lanka, October 19th,
2007.
[12]
He concluded
the applicant had not provided sufficient objective evidence that demonstrated
new risk developments that were personal to him and have arising since his last
PRRA rejection.
[13]
On serious
issue, counsel for the applicant argues the PRRA officer either ignored the new
evidence or misread it. He focussed on the Home Office Report of September 4th,
2007. He relied specifically on paragraphs 20.15 and 28.10 of that report to
the effect Tamils from the North or East who are able to reach Colombo could be
vulnerable to arbitrary arrest, detention or other forms of human rights
abuse. He also relied upon the Human Rights Watch Report of August 2007, the typical
profile of a detainee by the Sri Lankan government under the Emergency
Regulations is a Tamil person between 18 and 40. He puts his argument in the
context that the PRRA officer’s finding encompassed persecution under section
96 of the IRPA and that consequently all that had to be shown was a serious
possibility of persecution if returned to Sri Lanka.
[14]
I cannot
find a serious issue on the points raised by applicant’s counsel. The serious
issue must be analyzed in the context of the alleged errors advanced by the
applicant. The error is one of fact with the standard of review being patent
unreasonableness.
[15]
I cannot
see any error of fact in the PRRA officer decision. His reliance on a number
of paragraphs of the Home Office report does not say what applicant’s counsel
says because these paragraphs must be viewed in the entire context of the
documentary evidence relied on by the PRRA officer and, in particular, the
finding of a viable IFA based on objective evidence concerning the treatment of
failed refugees known to be gang member affiliated with the LTEE Counsel for
the applicant has not satisfied me the applicant has a profile which reasonably
suggests he will be
targeted by the Sri Lankan Army or Police. The evidence of
sweeps in Columbo primarily affecting Tamils and language his inability to
speak Singalese doe not approach persecution. Counsel for the applicant has
not brought forward any sufficient evidence to demonstrate the PRRA officer’s
reliance on the documentary evidence was erroneous. This is particularly so
when the baseline is the previous 1st PRRA decision where Justice
Beaudry found no serious issue in the first PRRA officer’s decision and where
leave was denied by this Court.
[16]
Based on
this analysis of lack of serious issue, irreparable harm has not been
demonstrated.
[17]
The balance
of convenience favours the Member and I endorse Justice Beaudry’s comment about
the applicant’s serious criminal record (see also, Sinnarajah v. Minister of
Public Safety and Emergency Preparedness, 2007 F.C. 895, at para. 12).
ORDER
THIS COURT ORDERS that this stay application is
dismissed.
“François
Lemieux”
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